Summary
granting assessment of sanctions and attorneys' fees
Summary of this case from Davis v. WetzelOpinion
No. 76 MAP 2019 No. 77 MAP 2019
12-22-2020
UNIONTOWN NEWSPAPERS, INC., d/b/a the Herald Standard; and Christine Haines, Appellees v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Appellant Uniontown Newspapers, Inc., d/b/a the Herald Standard; and Christine Haines, Appellees v. Pennsylvania Department of Corrections, Appellant
OPINION
We granted appeal in this matter to consider the assessment of sanctions and attorney fees based on a finding of bad faith and willful and wanton behavior by an agency responder under the Right to Know Law (RTKL).
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 -67.3104.
In September 2014, prior to the request for the records at issue in this case, the Abolitionist Law Center published a report entitled "No Escape: Exposure to Toxic Coal Waste at [SCI-]Fayette." The report alleged a causal connection between the ill health of inmates at SCI-Fayette, and the facility's proximity to a fly ash dumpsite. In response to the report, the Department of Corrections (DOC) coordinated with the Department of Health (DOH) to investigate the allegations (the No Escape Investigation). Christopher Oppman, who was then the Director of the DOC's Bureau of Health Care Services, oversaw the No Escape Investigation, which was led by Drs. Paul Noel and Eugene Ginchereau. In conducting the No Escape Investigation, the DOC consulted many sources of information. These included "causes of inmate deaths (Mortality Lists); a database that tracked inmates treated for cancer (Oncology Database); reports of inmate medications prepared by DOC's pharmacy contractor (Pharmacy Contractor Reports); and, records showing inmates enrolled in Chronic Care Clinics, tracked via the PTrax database (collectively, Inmate Illness Sources)." Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 185 A.3d 1161, 1164-65 (Pa. Cmwlth. 2018) ( Uniontown II ).
On September 25, 2014, reporter Christine Haines of The Herald Standard (Appellees) sent an e-mail RTKL request to the DOC, seeking:
documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates and staff members with those illnesses. I am particularly interested in various types of cancer reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI-Fayette with the health at other state correctional facilities, that would also be helpful.
Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 151 A.3d 1196, 1200 (Pa. Cmwlth. 2016) ( Uniontown I ).
DOC assumed Appellees’ request related to the Abolitionist Law Center's report and the No Escape Investigation. Uniontown II , 185 A.3d at 1165. DOC's open records officer, Andrew Filkosky, issued a denial of Appellees’ request in its entirety, citing several exceptions under Section 708(b) of the RTKL, as well as attorney-client privilege and deliberative process privilege grounds. Appellees appealed and, on December 1, 2014, the Office of Open Records (OOR) reversed, ordering DOC to disclose to Appellees "all responsive records" within 30 days. DOC did not file a petition for review of this determination with the Commonwealth Court.
On December 31, 2014, in-house counsel for DOC, Chase DeFelice, disclosed 15 pages of records to Appellees. The disclosed records included "charts depicting the following: the number of patients with pulmonary conditions in all SCIs (from Chronic Care Clinic records); the number of inmates with cancer in all SCIs (2010–13); inmate cancer deaths by institution (2010–13); inmate cancer deaths at SCI–Fayette (2003–13); the number of inmates treated by Pharmacy Contractor for pulmonary ailments (2010–14); and, the number of inmates treated by Pharmacy Contractor for gastrointestinal ailments (2010–14)." Id. (citation omitted). In January 2015, Appellees asked DOC to verify that its December 31, 2014 disclosure was a complete response to the request for records. After undertaking an additional review, DOC disclosed a memorandum from Dr. Ginchereau to Dr. Noel, as well as an e-mail from Dr. Noel about the investigation, and a day later disclosed cancer patient records from November 2014 and January 2015. At this juncture, Director Oppman verified that the DOC "had no other records of SCI–Fayette inmate illnesses by type and quantity[,] and comparison of illness rates at other [SCIs]." Id. (brackets in original, internal quotation marks and citation omitted).
In February 2015, Appellees filed a petition for enforcement with the Commonwealth Court, seeking statutory sanctions and attorney fees alleging DOC demonstrated bad faith in responding to the request for records, and the OOR's directive. DOC filed preliminary objections, which were overruled. DOC thereafter filed an answer and new matter. Appellees filed a motion for judgment on the pleadings, which the court denied. After further discovery, the parties filed cross-motions for summary relief.
Senior Judge J. Wesley Oler, Jr. issued this ruling in an unpublished single-judge opinion. See Uniontown Newspapers v. Dep't of Corr . (Pa. Cmwlth., No. 66 M.D. 2015, filed December 7, 2015). Therein, he held judgment on the pleadings was inappropriate because an issue of material fact existed concerning whether the DOC's interpretation of and/or response to the request for records was reasonable or made in bad faith.
A three-judge panel of the Commonwealth Court first considered whether DOC had complied with the OOR's Disclosure Order. DOC contended it provided all responsive records based on its reasonable interpretation of the scope of the request. The panel granted DOC's motion in part and denied it in part. Specifically, it held DOC was not required to disclose individual inmate medical records or to create new records compiling data from those records not already created or that would not be created in regular course. Uniontown I , 151 A.3d at 1207 (Pa. Cmwlth. 2016). However, in addition to records created as part of the No Escape Investigation, the Commonwealth Court identified the following records that DOC should have provided: (1) the Chronic Care Clinics Database; (2) the Oncology Database; (3) Mortality Lists; and (4) Pharmacy Contractor Reports, set forth above. Id . at 1205. Because the panel could not discern the full extent of any non-compliance by DOC, the panel directed the parties to file a stipulation as to the disclosure status of these five classes of records. The panel denied Appellees’ motion without prejudice and reserved judgment on the issue of bad faith sanctions. Id. at 1209. The parties engaged in further discovery. During this process, in March 2017, DOC disclosed additional mortality lists and data from its oncology database. After discovery was complete, the parties filed a stipulation that the "Pharmacy Contractor Reports and Chronic Care Clinic records remained outstanding." Uniontown II , 185 A.3d at 1166. The Commonwealth Court held a hearing in August 2017, and the parties filed proposed findings of fact and conclusions of law in October 2017.
In a single-judge opinion and order entered on March 23, 2018, the court proceeded to review Appellees’ alleged grounds for finding DOC acted in bad faith, specifically, that DOC construed the record request too narrowly; DOC failed to search records; and DOC failed to comply with the OOR's Disclosure Order. It addressed DOC's compliance at each stage, including its construction of the request, responsive actions upon receipt of the record request, its actions at the appeal stage before the OOR, and its degree of compliance with the disclosure order of the OOR.
With respect to the construction of the request, the court first noted that nothing in the request for information referenced the No Escape Investigation, and that DOC's assumption that the request related only to records related to that investigation stemmed merely from the coincidental timing of the request. The court noted that Appellees presented no evidence of communications with DOC clarifying the parameters of the request. The court further found that DOC's open records officer merely forwarded the request to DOC's Health Care Bureau without an interpretation of the request, and reflexively accepted the Health Care Bureau's subsequent interpretation. Absent any showing of an attempt to construe the request in any particular adverse manner, the court determined that DOC's erroneously narrow interpretation of the request did not itself amount to bad faith. Rather, it noted, "the primary problem revealed during the hearing was that DOC did not give any specific, separate consideration to the Request at all." Uniontown II , 185 A.3d at 1171 (emphasis in original).
The court observed that, during the appeal stage before the OOR, DOC represented to the OOR that it possessed records that were responsive to Appellees’ request, but the records were exempt from disclosure. The basis for this representation was a verification DOC's in-house counsel prepared for the Director of DOC's Bureau of Health Care Services, who also oversaw the No Escape Investigation. Critically, counsel submitted this verification to the OOR without ever obtaining or reviewing the records. Id. at 1173. Judge Simpson concluded that "by contesting access during the appeal, without obtaining all records and assessing the records’ public nature, DOC acted in bad faith." Id.
Once the OOR ordered disclosure within 30 days, "DOC bore the burden to prove it provided all responsive records." Id. (internal quotation marks omitted). The court found that DOC waited until after the 30-day period had passed before confirming whether it had searched for all potentially responsive records. Id. In addition, DOC failed to disclose all mortality lists and the oncology database data until months beyond the deadline. Id. Furthermore, DOC did not contact its pharmacy contractor until 2017 in order to obtain potentially responsive records held by the contractor. Id. The court determined this further evidenced a lack of good faith on the part of DOC. Id. at 1174. In addition, due to DOC's tardiness, certain chronic care clinic records were not preserved and were no longer available. Id. Concluding DOC responded in bad faith, the court then turned to the relief due to Appellees. First, the Commonwealth Court ordered disclosure of certain classes of remaining responsive records within 20 days. Id. In addition, the court observed that the RTKL permits sanctions up to $1,500.00 "if an agency denied access to a public record in bad faith." 65 P.S. § 67.1305(a). Based on its findings, the court concluded that the maximum amount of sanctions was appropriate in this case. The court deferred any resolution of Appellees’ request for attorney fees. The court directed Appellees to advise the court in writing of its intent to pursue its claim for attorney fees together with any supporting documentation, whereupon further briefing and/or hearing would be scheduled.
DOC does not dispute that these documents were responsive to the request, were not subject to any exclusion, and remained undisclosed.
Appellees subsequently pursued their claim for attorney fees. The court conducted a hearing on the issue of what constituted "reasonable" attorney fees in this case. Ultimately, by order entered on October 29, 2018, the Commonwealth Court awarded Appellees attorney fees of $118,458.37. Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 197 A.3d 825 (Pa. Cmwlth. 2018) ( Uniontown III ). Therein, the court clarified that it resolved the issue of bad faith in its earlier decision and accepted that finding for the purpose of determining reasonable attorney fees in the instant proceeding. Id. at 830.
DOC filed a petition for allowance of appeal, which this court granted, limited to the following issues:
1. Where RTKL Sections 65 P.S. § 67.1304 and § 67.1305 premise the award of sanctions and attorney fees on a finding of bad faith and willful and wanton behavior, can a court impose those penalties based on a finding that the RTK responder failed to personally and independently assess the universe of documents sought, instead relying on the statement of Bureau functionaries that all otherwise responsive records are part of a noncriminal investigation, when any duty to independently and personally assess is not clearly delineated in either the statute or the case law?
2. Did the Commonwealth Court properly construe the statutory language in 65 P.S. § 67.1304 as authorizing an award of attorney fees when a court reverses a final determination of an agency rather than when a court reverses the final determination of the appeals officer?
Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 218 A.3d 375 (Pa. 2019).
I.
With respect to the first issue, DOC focuses primarily on the Commonwealth Court's findings regarding the actions of open records officer Filkosky.
Statutory interpretation raises a question of law. Therefore, our standard of review is de novo and our scope of review is plenary. Com. v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1266 (2016).
The court found that upon receipt of Haines request, Filkosky forwarded her e-mail to DOC's Bureau of Health Care Services without any instructions. The Bureau did not respond in writing; however, one of its employees, Cathy Montag, spoke to Filkosky and informed him that the requested records all related to the No Escape Investigation that DOC and the DOH were performing. Filkosky concluded that the only other records would be the inmates’ medical files. N.T. 8/28/17, at 126-28. In addition, the court noted:
Significantly, Filkosky did not receive any potentially responsive records from DOC's Health Care Bureau. Without understanding the records involved, he relied on DOC's Health Care Bureau's assessment that any responsive records related to the No Escape Investigation. Filkosky also did not discern what records were allegedly investigative either to document their content or to assess any exemptions. Filkosky issued DOC's denial under Section 903 of the RTKL without reviewing any records.
Accordingly, DOC did not perform its duties during the request stage in several material respects. In short, DOC neglected to: perform a good faith search; obtain records from sources consulted during the No Escape Investigation; review all potentially responsive records; and assess the content of responsive records before withholding access.
Uniontown II , 185 A.3d at 1168.
In the appeal to the OOR, DOC submitted a verification from Director Oppman dated November 4, 2014, which stated that the records Haines requested are "presently part of a noncriminal investigation that was started by the Department and now includes the Department of Health." Joint Trial Exhibit 6. The verification was prepared by Chase DeFelice, in-house counsel for DOC. The court concluded that "Oppman was not directly involved in responding to the Request during the request stage." Uniontown II , 185 A.3d at 1168 n.5.
The court noted that pursuant to DOC's procedures, once the open records officer receives a RTKL request, " ‘there must be no disposal of potentially responsive records (no deletion of potentially responsive e-mails, etc.), ... notice of the RTKL request should be considered the equivalent of a litigation hold.’ " Id . at 1167 (citing Jt. Ex. 1 (RTKL Procedures, 2/12/12) (bold in original)). Further, DOC Policy provides, "[t]he open records officer must retain all potentially responsive records obtained from the custodian ‘until further notice’ regardless of a record retention schedule permitting disposal." Id . (citing Jt. Ex. 19 at part IV(K)(19)). Here, the Bureau of Health Care Services did not receive notice of a hold instruction. N.T. 8/28/17, at 45-46.
The court explained that the RTKL is remedial legislation designed to facilitate transparency of government information and to promote accountability. Id. at 1170 (citing Bowling v. Office of Open Records , 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff'd. 621 Pa. 133, 75 A.3d 453 (2013) ). As such, the court observed that, under the RTKL, proof of bad faith does not require establishing fraud or corruption. Id. Rather, an abnegation of mandatory duties by an agency, including performance of a detailed search and review of records to ascertain if the requested material exists, or if any exclusion may apply, prior to denial of access will support a finding of bad faith. Id. (citing Chambersburg Area Sch. Dist. v. Dorsey , 97 A.3d 1281 (Pa. Cmwlth. 2014) ).
The court noted that Chapter 9 of the RTKL sets forth an agency's duties when responding to a request for records. Upon receiving the request, the officer "must make a good faith effort to determine whether: (1) the record is a public record; and, (2) the record is in the possession, custody, or control of the agency." Id. at 1171. The officer also has a duty to "to advise all custodians of potentially responsive records about the request, and to obtain all potentially responsive records from those in possession." Id. at 1171-72. If the agency does not possess the records in question, but a contractor does, the agency must "take reasonable steps to secure the records from the contractor and then make a determination if those records are exempt from disclosure." Id. at 1172 (brackets omitted). After gathering all the relevant records, the agency must then "review the records and assess their public nature under Sections 901 and 903 of the RTKL." Id. As the Commonwealth Court observed, "[i]t is axiomatic that an agency cannot discern whether a record is public or exempt without first obtaining and reviewing the record." Id.
Section 901 of the RTKL provides, in relevant part:
§ 67.901. General rule
Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record, legislative record or financial record and whether the agency has possession, custody or control of the identified record, and to respond as promptly as possible under the circumstances existing at the time of the request.
65 P.S. § 67.901.
Section 903 of the RTKL provides, in relevant part:
§ 67.903. Denial
If an agency's response is a denial of a written request for access, whether in whole or in part, the denial shall be in writing and shall include:
(1) A description of the record requested.
(2) The specific reasons for the denial, including a citation of supporting legal authority.
65 P.S. § 67.903.
The court determined that the DOC did not make a good faith effort to establish whether it possessed or controlled records responsive to the request. Specifically, the court found the DOC made no search for responsive records at the request stage, instead identifying the existence of responsive records only after litigation had begun. Id. Moreover, the court concluded the DOC failed to obtain all records from its Health Care Bureau, Pharmacy Contractor, and other record custodians upon receiving Appellees’ request. Id. Accordingly, the court concluded, "[w]ithout obtaining or reviewing any records, DOC denied access to responsive public records. DOC's failure to comply with Section 901 prior to issuing its ‘denial’ under Section 903 constitutes bad faith." Id.
DOC argues that the open records officer's denial of Haines’ request cannot constitute bad faith because Filkosky complied with Section 502 of the RTKL, which provides, in relevant part:
§ 67.502. Open-records officer
(a) Establishment. -
(1) An agency shall designate an official or employee to act as the open-records officer.
...
(b) Functions. -
(1) The open-records officer shall receive requests submitted to the agency under this act, direct requests to other appropriate persons within the agency or to appropriate persons in another agency, track the agency's progress in responding to requests and issue interim and final responses under this act.
65 P.S. § 67.502.
DOC maintains that nothing in Section 502 or any other section of the RTKL places on the open records officer a duty to perform an independent record search, physically obtain records, review them or assess their content. Rather, it asserts the duty to make a good faith effort under Section 901 was placed on the agency, and notes that in this case, "Ms. Montag, who was familiar with the records, was part of the agency at the time in question." Appellant's Brief, at 17.
DOC recognizes that once it receives a request, an agency must perform an assessment whether the record requested is a public record. However, it argues that while the open records officer may perform the assessment, having someone else do so, such as Ms. Montag from the Bureau of Health Care Services, is not a violation of Section 502, which is silent on the point of who must perform the assessment. Id . at 18.
Appellees assert DOC has misconstrued the Commonwealth Court's decision because at no point does the opinion specifically state that the open records officer's failure to search for responsive documents is the basis for the finding of bad faith. Rather, it emphasizes that the court points to DOC's misconduct.
With respect to the request stage, which is the focus of the instant matter, Appellees point out that the testimony from the August 28, 2017 hearing supports the court's findings regarding DOC's failure to conduct a good faith search for responsive records. Filkosky testified that he understood the newspaper had not asked for results of the DOC's investigation into the Abolitionist Report. N.T. 8/28/17, at 139. However, based on his conversation with Ms. Montag, he "got the impression that other than the investigation, the only records that would exist would be inmates’ medical files." Id . at 128. He did nothing to confirm his impression nor did he question Ms. Montag as to why the response to the Abolitionist Report would cover a request for documents from a third party. Id . at 135.
Appellees are correct that at no point does the Commonwealth Court specifically state the open records officer acted in bad faith, but instead concludes that DOC did so. However, as noted above, the court criticized both Filkosky's unquestioning reliance on Ms. Montag's representations that all responsive records related to the No Escape Investigation, and Filkosky's failure to obtain and review those records to document their content or assess any exemptions. Uniontown II , 185 A.3d at 1168. Immediately thereafter, the court recognized that "DOC did not perform its duties during the request stage in several material respects," id ., all of which directly related to the open records officer's deficient performance. The court subsequently noted:
Here, DOC did not make a good faith effort to determine whether it had possession or control of responsive records upon receipt of the Request. Critically, it did not perform any search for records in response to the Request.
DOC's failure to search records in its possession for responsive records during the request stage constitutes bad faith.
Id . at 1172 (citations omitted). Again, there is a clear identification between the failures of the open records officer and the DOC as found by the court. Accordingly, it is appropriate for us to consider the duties the court placed on the open records officer in this case to "obtain records from sources consulted during the No Escape Investigation; review all potentially responsive records; and assess the content of responsive records before withholding access." Id. at 1168.
It is well-settled that "[j]ust like a private corporation, any governmental agency or political subdivision, and indeed the Commonwealth itself can only act or carry out its duties through real people - its agents, servants or employees." Moon Area School Dist. v. Garzony , 522 Pa. 178, 560 A.2d 1361, 1366 (1989). Section 901 of the RTKL places upon an agency the responsibility to "make a good faith effort to determine if the record requested is a public record ... and to respond as promptly as possible under the circumstances existing at the time of the request." 65 P.S. § 67.901. Section 502(b)(1) provides that the open records officer is the individual who receives the request and "track[s] the agency's progress in responding to requests." 67 P.S. § 67.502(b)(1). Here, the court apparently ascribed to DOC the failure of the open records officer to do anything other than forward the request to the Bureau of Health Care Services. Filkosky testified that he did not seek an explanation about the Abolitionist Investigation and how it related to the request; did not review the request with the Bureau of Health Care Services; did not question the narrow interpretation of the request by the Bureau; and did not take any steps to confirm whether the only records that existed other than those generated in the ongoing investigation were medical records. N.T. 8/28/17, at 134-36.
"When the General Assembly replaced the Right to Know Act in 2009 with the current RTKL, it significantly expanded public access to governmental records ... with the goal of promoting government transparency." Pa. State Police v. Grove , 640 Pa. 1, 161 A.3d 877, 892 (2017) (internal quotation and citation omitted). In order to advance this goal we conclude it is reasonable to impose on the open records officer a duty to act with diligence when "direct[ing] requests to other appropriate persons within the agency." 65 P.S. § 502(b)(1). This is what the Commonwealth Court did by implication when it faulted Filkosky for his slavish reliance on the Health Care Bureau's conclusion that the only responsive records related to the No Escape Investigation, and for his failure to review the allegedly investigative records to determine if they were exempt. Mindful that the open records officer is the statutorily designated individual responsible for the record gathering process, we reject DOC's contention the open records officer fulfills his or her obligation simply by relying on the representations of others without inquiring as to what investigation was made and without reviewing the records upon which the individual responding to the request relied.
Accordingly, we conclude that the Commonwealth Court did not err when it determined that DOC acted in bad faith at the request stage, in significant part because the open records officer failed to act with diligence in response to Appellee's request.
Related to this issue, DOC argues the Commonwealth Court's construction of Section 502 raises significant administrative problems because it would require an open records officer to know every possible place records could exist, which is impossible for an agency the size of DOC. It also asserts that requiring an open records officer to obtain a copy of records that the agency maintains are exempt would result in duplication and temporary retention of thousands of documents that may never be released. Lastly, it asserts that requiring the open records officer to assess the records for responsiveness, instead of relying on the determinations of employees who are familiar with them may be impossible due to the technical knowledge required to determine if the records are responsive to the request. Id . at 19-20.
While cognizant of DOC's argument, in this instance we nevertheless agree with Appellees’ reliance on Com., Dep't of Envtl. Prot. v. Legere , 50 A.3d 260, 266 (Pa. Cmwlth. 2012) where the court held, "[t]here is simply nothing in the RTKL that authorizes an agency to refuse to search for and produce documents based on the contention it would be too burdensome to do so." Such concerns must give way to the important goal of government transparency, which is the hallmark of the RTKL. See Grove , 161 A.3d at 892.
As recognized by amicus curiae Pennsylvania NewsMedia Association, "[a] good faith response - either to produce records or assert an exemption - cannot occur absent a good faith search, followed by collection and review of responsive records, so an agency has actual knowledge about the contents of the relevant documents." Brief of Amicus Curiae, at 15. In light of DOC's failure to take any reasonable steps to respond to Appellee's request, its argument with respect to burdensomeness rings hollow.
II.
DOC next challenges the award of attorney fees under Section 1304 of the RTKL, 65 P.S. § 67.1304. The court observed that it had jurisdiction under the RTKL to consider an award of attorney's fees, based on Appellees’ prior successful appeal before the OOR. After that appeal, the court noted that Appellees began this enforcement action in the Commonwealth Court's ancillary appellate jurisdiction under Chapter 13 of the RTKL. Uniontown III , 197 A.3d at 832.
In general, awards of attorney fees in RTKL proceedings are authorized by Section 1304(a), which provides:
§ 67.1304. Court costs and attorney fees
(a) Reversal of agency determination.-- If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
The court noted that the term "final determination" is used in two different ways in Section 67.1304(a). The section refers to "the final determination of the appeals officer" in the text of Subsection (a) and "the agency in its final determination" in the text of Subsection (a)(2). Id . at 834 (quoting 65 P.S. § 67.1304 ). The court concluded that the term "final determination" was therefore ambiguous. It framed the question as "whether attorney fees are reserved for when the Court reverses an appeals officer's determination, as opposed to when a receiving agency's determination is reversed." Id. (emphasis in original).
The court concluded that the best reading of Section 67.1304(a) is to authorize attorney fees when an agency's determination is reversed. Judge Simpson noted that a contrary interpretation would be unreasonable and yield absurd results. Id. ; see also 1 Pa.C.S. § 1922(1). Construing the section to mean an appeals officer's determination "would penalize a requester for prevailing in its Chapter 11 appeal ... because when an appeals officer recognizes a requester's access rights in the administrative proceeding, reversing that appeals officer's determination would be adverse to the requester." Id. (emphasis in original). The court continued that if the section required "reversal of an appeals officer's final determination is a prerequisite for requester's recovery under Section 1304(a), the agency accused of bad faith may preclude this remedy by electing not to appeal the final determination to a Chapter 13 Court." Id. As a result, "the most egregious of agency conduct, and the denials of access recognized as improper during the Chapter 11 appeal, could go unchecked." Id. The Commonwealth Court offered this case as an illustration of the problems such an interpretation would create.
Consider the current case. DOC disregarded its disclosure duties during each stage of the RTKL process and did not comply with the appeals officer's final determination in Requester's favor. Because it obtained the Disclosure Order, Requester had no interest in this Court reversing the appeals officer's final determination. However, DOC elected to not appeal, yet did not discover or disclose all responsive records until after years of litigation. Requester here advocated the public interest in a matter of public health affecting a captive population. Its recovery of fees should not turn on whether a noncompliant agency appealed to this Court.
In the context of "bad faith," if an agency denied access improperly, it is more likely that an appeals officer would decide disclosure in a requester's favor. Presuming an agency committed bad faith, and disregarded the RTKL process at each stage as DOC did here, then on appeal, a Chapter 13 Court is more likely to affirm an appeals officer's determination in a requester's favor than to reverse it.
Id. (emphasis in original).
The court also concluded that its construction was supported by cases construing the Right to Know Act, the RTKL's predecessor. Specifically, in Parsons v. Pa. Higher Educ. Assistance Agency , 910 A.2d 177 (Pa. Cmwlth. 2006) (en banc), appeal denied , 591 Pa. 686, 917 A.2d 316 (2007), the Commonwealth Court held that the attorney fees provision of the [Right to Know Act] permitted an award of attorney fees "if a court reverses an agency's final determination[.]" Parsons , 910 A.2d at 188. Based on these considerations, the court construed "Section 1304(a)(1) of the RTKL as permitting recovery of attorney fees when the receiving agency determination is reversed, and it deprived a requester of access to records in bad faith." Uniontown III , 197 A.3d at 835. Therefore, the court held Appellees were entitled to reasonable attorney fees.
In light of its conclusion on Section 67.1304(a), the court declined to decide whether the Costs Act would allow Appellees to recover attorney fees. Uniontown III , 197 A.3d at 835 ; see also generally 42 Pa.C.S. § 2503(7).
In this case, Appellees requested fees totaling $215,190.75. Id. After reviewing the legal parameters surrounding what constitutes "reasonable" attorney fees, and upon consideration of the evidence presented, the Commonwealth Court reduced the amount of attorney fees to $118,458.37. Id. at 841.
DOC asserts that the Commonwealth Court erred in concluding that the term "final determination" in Section 1304(a) is ambiguous. It argues, "[w]hile it is true that the term is used in two places to address different determinations, each use is clear in itself." Appellant's Brief at 22. DOC notes that while Section 1304(a) provides for imposition of costs and attorney fees if the court reverses "the final determination of an appeals officer," Section 1304(a)(2) refers to the final determination of the agency in answering the request. Id.
DOC draws our attention to Section 1921(b) of the Statutory Construction Act, which provides that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S § 1921(b). It avers that the plain language of Section 1304(a) "limits court costs and fees imposed to two instances --- reversal of the appeals officer or grant of a deemed denial." Id . Here, the Commonwealth Court did not reverse the appeals officer because no appeal was taken from her order. Nor was there a deemed denial by the agency. Accordingly, DOC argues that in light of the plain language of the statute, the court should not have resorted to the principles of statutory construction.
Appellees offer several reasons in support of their position that we should affirm the Commonwealth Court's interpretation of Section 1304(a). Initially, they note that the heading of the section, "reversal of an agency decision," indicates that the provision applies any time an agency's decision to deny access is reversed. In addition, they assert the multiple references to a "final determination" in Section 1304(a), along with the heading of the section create an ambiguity that justifies the Commonwealth Court's reliance on canons of statutory construction. See , Narberth Borough v. Lower Merion Twp. , 590 Pa. 630, 915 A.2d 626, 634 (2007) (statutory interpretation principles apply when "the plain language of the statute, standing alone, leaves room for doubt as to its intended meaning.").
Appellees emphasize that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). This Court held that "the objective of the RTKL is to empower citizens by affording them access to information concerning the activities of their government." Levy v. Senate of Pennsylvania , 619 Pa. 586, 65 A.3d 361, 381 (2013) (quotation and citation omitted). "Courts should liberally construe the RTKL to effectuate its purpose of promoting access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." Id . Appellees’ Brief at 36-37.
When interpreting a statute, we are mindful that "the General Assembly does not intend a result that is absurd." 1 Pa.C.S. § 1922(1). Echoing the Commonwealth Court, Appellees argue that limiting fees to situations where the court reverses an order of the OOR appeals officer would render such a result. "If reversal of the OOR was a prerequisite to fees, the RTKL would penalize a requestor for prevailing at the OOR." Id. at 37.
Appellees further assert this Court has recognized that the RTKL, which replaced the former Right to Know Act, "was a dramatic expansion of the public's access to government documents" and "demonstrate[s] a legislative purpose of expanded government transparency through public access to documents." Levy , 65 A.3d at 381. The Right to Know Act contained the following fee shifting provision:
(a) Reversal of agency determination. If a court reverses an agency's final determination, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
(1) the agency willfully or with wanton disregard deprived the requester of access to a public record subject to access under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law.
65 P.S. § 66.4-1(a) (repealed).
Noting that Section 1304(a) of the RTKL has the identical heading as Section 66.4-1(a) of the Act, Appellees suggest the RTKL should be read in accord with the predecessor statute. To do so is consistent with this Court's direction that when discerning legislative intent we may consider "the former law, if any, including other statutes or regulations upon the same or similar subjects." Com. v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1268 (2016). Further supporting this position, Appellees note that while the RTKL bill was before the Senate, the focus was on strengthening the enforcement provisions and facilitating fee shifting:
Another criticism of Senate Bill No. 1 is the fact that it removes criminal penalties which have existed since the current law was adopted. This was done because we can find no evidence of a single criminal prosecution under the 1957 law, and because the ACLU and the Attorney General of Pennsylvania agree that criminal, sanctions were an inappropriate remedy. Although Senate Bill No. 1 removes the criminal penalties, it also significantly strengthens civil penalties for noncompliance and makes it easier for a plaintiff to recover attorney fees if an agency acts in bad faith. I believe these are things that will have a practical, meaningful effect on people's ability to obtain records.
SB 1, PN 1583 - Pa. Legis. J., No. 89, Sess. of 2007, Bill on Third Consideration and Final Passage , at 1407 (Pa. 2007) (Sen. Pileggi).
Because the intent of the Legislature when enacting the RTKL was to expand access to government records, Appellees argue it would be unreasonable to limit fee shifting to a narrower set of circumstances than provided for in the Right to Know Act. Accordingly, consistent with its predecessor, the enforcement provision of the RTKL should apply "where an agency's final decision to deny access is reversed and found to be in bad faith." Appellees’ Brief, at 40.
Appellees further challenge DOC's position that only a deemed denial as opposed to an express denial can serve as a basis for fee shifting. They note that throughout the RTKL no distinction is made between deemed and express denials. Accordingly, relying on the rule that "[e]very statute shall be construed, if possible, to give effect to all its provisions," 1 Pa.C.S. § 1921(a), Appellees argue that deemed and express denials give requestors the same rights under the RTKL. Id. at 40-41.
Appellees maintain the enforcement provisions of the RTKL should be viewed in a manner consistent with Section 1932(b) of the Statutory Construction Act, which provides, in relevant part, "[s]tatutes in pari materia shall be read together. 1 Pa.C.S. § 1932(b), Appellees point out that Section 1305(a) of the RTKL permits a civil penalty of up to $1,500 "if an agency denied access to a public record in bad faith." 65 P.S. § 67.1305. Because this section applies any time a bad faith denial of access occurs, Appellees assert that a similar standard should apply to the fee shifting provisions of Section 1304(a). Id . at 41.
Our resolution of this issue is grounded on whether Section 1304(a) is ambiguous. As this Court has noted:
In matters involving statutory interpretation, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). A statute's plain language generally provides the best indication of legislative intent. See , e.g., McGrory v. Dep't of Transp. , 591 Pa. 56, 915 A.2d 1155, 1158 (2007) ; Commonwealth v. Gilmour Mfg. Co. , 573 Pa. 143, 822 A.2d 676, 679 (2003). In construing the language, however, and giving it effect, "we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear." Roethlein v. Portnoff Law Assocs., Ltd. , 623 Pa. 1, 81 A.3d 816, 822 (2013), citing Mishoe v. Erie Ins. Co. , 573 Pa. 267, 824 A.2d 1153, 1155 (2003). Accord Commonwealth v. Office of Open Records , 628 Pa. 163, 103 A.3d 1276, 1285 (2014) (statutory language must be
read in context; in ascertaining legislative intent, every portion is to be read together with remaining language and construed with reference to statute as a whole).
The United States Supreme Court also takes a contextual approach in assessing the plain language of statutes and in determining if an ambiguity exists. See generally King v. Burwell , 576 U.S. 473, 486, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) ("If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme." (internal quotation marks and citations omitted)); Yates v. United States , 574 U.S. 528, 537, 135 S.Ct. 1074, 1081–82, 191 L.Ed.2d 64 (2015) (" ‘[T]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.’ Ordinarily, a word's usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things." (internal citations omitted)).
Com. v. Giulian , 141 A.3d at 1266.
Like the Commonwealth Court, we conclude that the use of the term "final determination" with respect to the appeals officer and to the agency in the same section renders the term ambiguous in Section 1304(a).
In light of this ambiguity, recourse to statutory interpretation is appropriate. Foremost, we look to the intent of the legislature when enacting the RTKL. As this Court has recognized, "the objective of the RTKL ... is to empower citizens by affording them access to information concerning the activities of their government." SWB Yankees, LLC v. Wintermantel , 615 Pa. 640, 45 A.3d 1029, 1041 (2012). "We are obliged to liberally construe the [RTKL] to effectuate its salutary purpose of promoting access to official government information in order to prohibit secrets, scrutinize actions of public officials and make officials accountable for their actions." Dep't of Pub. Welfare v. Eiseman , 633 Pa. 366, 125 A.3d 19, 29 (2015) (quotation and citation omitted).
As noted, the fee shifting provision of the Right to Know Act provided for an award of reasonable attorney fees and cost of litigation where "a court reverses an agency's final determination." 65 P.S. § 66.4-1(a) (repealed). If we were to accept DOC's position that Section 1304 only permits recovery of attorney fees and costs where the court reverses the determination of the appeals officer or the agency deems the request denied, a requester would have less rights under the RTKL than under the repealed Right to Know Act. Considering that the RTKL "significantly expanded public access to governmental records ... with the goal of promoting government transparency," Grove , 161 A.3d at 892, such a result is contrary to legislative intent.
Moreover, as the Commonwealth Court recognized, making the reversal of the appeals officer's determination a prerequisite for imposition of attorney fees and costs can lead to an absurd result. In this case, after DOC denied Appellees’ request, they sought relief from the OOR appeals officer who issued a disclosure order in their favor. Having received the relief they requested, Appellees had no reason to seek further appeal. DOC chose not to appeal, yet nevertheless failed to "discover or disclose all responsive records until after years of litigation." Uniontown III , 197 A.3d at 834. The effect of DOC's proposed reading of Section 1304 is that a requester who is successful at the OOR is prevented from seeking attorney fees and costs if an agency does not file an appeal. The practical effect of DOC's position is to limit a requester to "a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith." 65 P.S. § 67.1305.
Consistent with the purpose of the RTKL, we affirm the conclusion of the Commonwealth Court that Section 1304(a)(1) "permit[s] recovery of attorney fees when the receiving agency determination is reversed, and it deprived a requester of access to records in bad faith." Id. at 835.
Chief Justice Saylor and Justices Baer and Donohue join the opinion.
Justice Wecht files a concurring and dissenting opinion in which Justice Todd joins.
Justice Dougherty files a dissenting opinion.
JUSTICE WECHT, concurring and dissenting
I join Part I of the Court's opinion in full. In denying a request for records under the Right-to-Know Law ("RTKL"), an agency's Open Records Officer ("ORO") may rely upon the averments of an appropriate custodian that the responsive records fall under the law's non-criminal investigatory exemption. See 65 P.S. § 67.708(b)(17). However, the agency should provide a sworn statement to substantiate a denial on that basis when the ORO does not perform the search in question. That did not occur here. In fact, the record demonstrates that a representative of the Department of Correction's Bureau of Health Care Services, Cathy Montag, relayed her conclusion as to the applicability of the exemption to the Department's ORO, Andrew Filkosky, in person, thus depriving the parties of a paper trail. Filkosky, in turn, reflexively accepted Montag's view and (erroneously) denied the request in full. Throughout this litigation, the Department essentially has argued that Filkosky was correct to rely upon Montag's assessment. But that position elides the fact that Filkosky held out that assessment as his own. Without an attestation from Montag—the individual who, according to the Department, actually performed the requisite inspection—there is no way to credit the agency's final response, either before the Office of Open Records ("OOR") or on appellate review.
65 P.S. §§ 67.101 -67.3104.
The email request stated: "I am seeking documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates or staff members with those illnesses. I am particularly interested in various types of cancer reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI-Fayette with the health at other state correctional facilities, that would be helpful." RTKL Request, 9/25/14; Uniontown I , 151 A.3d at 1200.
Given the Commonwealth Court's well-documented findings, it is beyond dispute that the Department abdicated its duty to perform a good faith search for responsive records. The Department now claims that the court imposed a burdensome requirement that an ORO must perform a search personally. While it is true that denials of records requests are issued on the ORO's authority, see id. § 67.903(3), the Department's assertion is a red herring, as the court said no such thing about the scope of that officer's obligations. Rather, it correctly applied the duty of good faith to the agency as a whole, and found that the duty was not satisfied here. No fewer than four Department employees (Filkosky, Montag, Bureau Director Christopher Oppman, and Department counsel Chase DeFelice)—some of whom apparently received little to no formal RTKL training despite routinely handling requests for health records —received the request for responsive health records, properly redacted and anonymized. Yet each made the same erroneous assumption about the records at issue despite the clear language of the request. They then failed to perform a search for responsive documents and misinformed the requesters about the results, baldly citing disclosure exemptions that plainly were inapplicable. Consequently, the requesters incurred hundreds of thousands of dollars in legal expenses to litigate the refusal to release presumptively public records. Six years on, the matter remains unresolved.
See, e.g. , Notes of Testimony, 8/28/2017, at 28-29 (Direct Examination of Christopher Oppman).
I agree with the majority's observation that the RTKL is remedial legislation designed to facilitate transparency and as such, proof of bad faith under the RTKL does not require establishing fraud or corruption. See Majority Op. at 25, 243 A.3d 19, citing Uniontown II , 185 A.3d at 1170 (citing Bowling v. Office of Open Records , 990 A.2d 813, 824 (Pa. Cmwlth. 2010) ). Rather, a finding of bad faith can be supported by the showing of an abnegation of mandatory duties by an agency, including performance of a detailed search and review to ascertain if the requested material exists or if any exclusions apply, prior to denial of the request. Id.
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Where an ORO does not personally conduct a search but instead relies upon the efforts of other custodians within the agency in denying a request for responsive records, those custodians should provide an affidavit or some sort of formal statement regarding the parameters of the search they conducted and the grounds for denial. That formality would help to avoid the situation here, where it appears that no one at the Department made much effort to find what the requesters were asking for, where Department representatives communicated in person seemingly to circumvent a written record, and where the ORO simply passed off the Bureau representative's conclusion as his own, necessitating costly litigation. An agency should not be able to escape liability by claiming that the ORO was just following the advice of others. Otherwise, the statutory duty of good faith would be rendered nugatory.
That being said, I dissent from Part II of today's opinion because the Majority sustains the lower court's award of attorney fees based upon a misreading of Section 1304 of the RTKL. As the statute's evolution makes clear, the RTKL's drafters erred when they amended the prior version of that section, then found in the Right-to-Know Act ("RTKA"), in an attempt to conform it with the terms of art used throughout the new law. Accordingly, I am constrained to agree with the Department that the unambiguous language of subsection 1304(a) forecloses an award of attorney fees here.
A brief history of the RTKL's genesis is necessary in order to understand the significance of the General Assembly's blunder in the context of the matter before us. Prior to the adoption of the RTKL in 2008, agencies were required, "[u]pon receipt of a written request for access to a record," to "make a good faith effort to determine if the record requested is a public record and to respond as promptly as possible under the circumstances existing at the time of the request." 65 P.S. §§ 66.3-3(a), 66.3-4(a) (repealed). The RTKA directed agencies to issue "responses" via "written notice granting, denying or partially granting and partially denying access to a record." Id. § 66.1 (repealed). If a Commonwealth agency failed to issue a response "within ten business days of receipt of the written request for access, the written request for access shall be deemed denied." Id. § 66.3-3(a) (repealed); see also id. § 66.3-4(a) (repealed) (deeming record requests to non-Commonwealth agencies denied if no response is sent within five business days). Responses denying access to a record, or requests that were "deemed denied" by operation of law, were appealable under the RTKA upon the requester's filing of "exceptions with the head of the agency denying the request." Id. § 66.3-5(a) (repealed). That agency head, or his designee, then had thirty days to issue a "final determination" based upon the requester's grounds for exception. Id. § 66.3-5(b) (repealed).
Section 66.3-5 ("Final agency determination") of the RTKA provided:
(a) Filing of exceptions. If a written request for access is denied or deemed denied, the requester may file exceptions with the head of the agency denying the request for access within 15 business days of the mailing date of the agency's response or within 15 days of a deemed denial. The exceptions shall state grounds upon which the requester asserts that the record is a public record and shall address any grounds stated by the agency for delaying or denying the request.
(b) Determination. Unless the requester agrees otherwise, the agency head or his designee shall make a final determination regarding the exceptions within 30 days of the mailing date of the exceptions. Prior to issuing the final determination regarding the exceptions, the agency head or his designee may conduct a hearing. The determination shall be the final order of the agency. If the agency head or his designee determines that the agency correctly denied the request for access, the agency head or his designee shall provide a written explanation to the requester of the reason for the denial.
65 P.S. § 66.3-5 (repealed).
If an agency's final determination was adverse to the requester, the requester then could seek judicial review in the courts of common pleas or in the Commonwealth Court, depending on whether the agency in question was a "Commonwealth agency" or a "non-Commonwealth agency." Id. § 66.4(a)-(b) (repealed). Reasonable attorney fees and litigation costs were awardable under the RTKA, in the court's discretion, if the court "reverse[d] an agency's final determination," and found either of the following circumstances:
(1) the agency willfully or with wanton disregard deprived the requester of access to a public record subject to access under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
Id. § 66.4-1(a)(1)-(2).
With the adoption of the RTKL, the General Assembly removed the authority to review an agency's response from the "agency head" and instead created a quasi-judicial administrative appeal mechanism, by which a neutral "appeals officer" designated by the Office of Open Records (for Commonwealth and local agencies), or by a judicial, legislative, or law enforcement agency pursuant to Section 503 of the RTKL, reviews the underlying denial and "[i]ssue[s] a final determination on behalf of the Office of Open Records or other agency." Id. §§ 67.1101(a)-(b), 1102(a)(4). Like an agency's final determination under the RTKA, a final determination issued by the appeals officer also is subject to judicial review under the RTKL. See id. § 67.1301.
As far as court costs and fees are concerned, however, the General Assembly amended the statutory prerequisites for receiving an award. Section 1304 now provides:
(a) Reversal of agency determination. --If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted
in bad faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
65 P.S. § 67.1304(a)(1)-(2). By its plain terms, before a reviewing court may entertain an award of attorney fees to a requester pursuant to Section 1304 of the RTKL, the court must either "reverse[ ] the final determination of the appeals officer or grant[ ] access to a record after a request for access was deemed denied," 65 P.S. § 67.1304(a) (emphasis added). In this case, because the Department's erroneous denial of the original request for access to inmate health records was reversed by an OOR-appointed appeals officer and not by the Commonwealth Court, neither of those conditions were satisfied. Thus, the requesters were not entitled to an award of litigation costs and attorney fees.
Notwithstanding the clear language of subsection 1304(a), the Commonwealth Court and today's Majority point to the alternative usage of the phrase "final determination" in subsection 1304(a)(2) to find ambiguity in the former provision. Significantly, the language that appears in subsection 1304(a)(2) is identical to the language employed in subsection 66.4-1(a)(2) of the RTKA, and it is the only provision of the RTKL that still retains a reference to the final determination of an "agency." This is particularly noteworthy because agencies no longer issue final determinations. Rather, with the RTKL's promulgation, the decision to be issued by an agency's open records officer to grant or deny a request for access to records was designated as a "final response." 65 P.S. § 67.502(b)(1). With that in mind, it is evident that the Legislature simply failed to revise subsection 1304(a)(2) so that it conformed with the new terms of art employed throughout the RTKL, the remainder of which accurately refer to the final determination of an appeals officer .
See, e.g. , id. §§ 67.502(b)(2)(iii) (requiring open records officers to maintain copies of written requests "for 30 days or, if an appeal is filed, until a final determination is issued under section 1101(b) or the appeal is deemed denied"); 1101(b)(1)-(3) (outlining procedures governing an appeals officer's final determination); 1102(a)(4) (defining the duty of an appeals officer to "[i]ssue a final determination on behalf of the Office of Open Records or other agency"); 1301(a) ("Within 30 days of the mailing date of the final determination of the appeals officer relating to a decision of a Commonwealth agency ..."); 1302(a) ("Within 30 days of the mailing date of the final determination of the appeals officer relating to a decision of a local agency ...").
This legislative oversight is confirmed by subsection 1304(a)(2)’s contemplation of an agency's "assert[ion]" of "exemptions, exclusions or defenses ... in its final determination." 65 P.S. § 67.1304(a)(2). For Commonwealth agencies like the Department of Corrections, the appeals officer who issues a final determination is selected by the OOR. As a neutral arbiter, that officer would not be "asserting" exemptions, exclusions, or defenses on behalf of the agency. To the contrary, the agency makes the assertions; the appeals officer merely decides if they are applicable. That the appeals officer is not synonymous with "the agency" throughout the RTKL is further evidenced by the fact that the former is not a party to an appeal in the Commonwealth Court or the courts of common pleas. The appeals officer's only role at that point is to certify and transmit the record, evincing that officer's quasi-judicial function. The agency itself is tasked with defending the denial of access. That is why the appeals officer for a Commonwealth agency ultimately issues a final determination "on behalf of the Office of Open Records." See id. § 67.1102(a)(4).
In the face of this, the Majority resorts to various tools of statutory construction, even wandering briefly into the thickets of the RTKL's legislative history as it journeys toward its conclusion that the most natural reading of subsection 1304(a) produces "an absurd result." See Maj. Op. at 31–32, 33, 243 A.3d 19. But to be clear, the Legislature's readily apparent drafting error in subsection 1304(a)(2) could not render subsection 1304(a)’s operative phrase—"the final determination of the appeals officer"—ambiguous. Here, the Commonwealth Court did not reverse the final determination of the Department's OOR-appointed appeals officer. Consequently, no attorney fees or costs were available. While I agree that the effect here is unusual—i.e. , that a requester can receive an award of court costs and attorney fees if an agency denies a record in bad faith and the OOR affirms the denial (or a record is deemed denied), but that no awards are available if the OOR reverses a bad faith denial and thereby removes the need for a reviewing court to "reverse [the appeals officer's] final determination"—that result is not due to any ambiguity in the RTKL whatsoever. Instead, it is precisely what the statute now commands. As such, this is not a case where this Court needs to, or even can, resort to canons of construction. We simply must highlight this patent mistake and leave it to the General Assembly to correct its own oversight. Our role allows us to go no further.
Accordingly, I would affirm the Commonwealth Court's finding of bad faith, reverse the award of fees and costs, and remand for further proceedings on the requesters’ unaddressed alternative grounds for sanctions.
JUSTICE DOUGHERTY, dissenting
In my view, the record does not support the determination that appellant, Department of Corrections (DOC), acted in bad faith in replying to requests for documents by appellees, reporter Christine Haines and The Herald Standard. Accordingly, I respectfully dissent.
The record shows the email request by appellees was "inspired by" a report issued by the Abolitionist Law Center entitled, "No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette" (the report). Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 151 A.3d 1196, 1200 (Pa. Cmwlth. 2016) ( Uniontown I ). The report described, inter alia , SCI-Fayette inmates’ complaints of cancer, pulmonary, and gastrointestinal disease, and linked the complaints to the penitentiary's geographical proximity to a fly-ash dump site. Haines's request for documents, dated several weeks after the report's publication, was vague. It did not mention the report or expressly seek documentation relating to the claims in the report. Rather, it sought documentation of "illnesses" generally, the numbers of persons with "those illnesses," and expressed "particular" interest in "various types of cancer" and "respiratory ailments" reported at SCI-Fayette.1
At the time DOC received the request, it was jointly involved in an investigation regarding the report with the Department of Health (DOH). DOC's Open Records Officer (ORO), Andrew Filkosky, to whom the records request was addressed, relayed the request to DOC's Health Care Bureau, which advised him the requested records related to the investigation. Accordingly, DOC denied the request in partial reliance on the noncriminal investigation exception contained in Section 708(b)(17) of the Right to Know Law (RTKL). See 65. P.S. § 67.708(b)(17) (excepting "[a] record of an agency relating to a noncriminal investigation").
Appellees appealed the denial to the Office of Open Records (OOR) which determined the non-criminal investigation exception did not apply. DOC did not appeal from the OOR order; instead, DOC timely turned over fifteen pages of charts and data, which identified the number of inmates treated for various forms of illness, showing rates of cancer, pulmonary and gastrointestinal disease at SCI-Fayette from 2010-2014, including a comparison across institutions, comparisons of deaths from natural causes to cancer deaths, and a spreadsheet of cancer deaths by type of cancer from 2003-2013. In response to the appellees’ request to verify DOC's disclosure was complete, DOC additionally disclosed a press release, a water analysis of SCI-Fayette, an investigative summary by a physician, a redacted medical records review by a physician, a redacted list of cancer patients at SCI-Fayette, statistics regarding oncology treatments and internal emails discussing the investigation. DOC also averred it had no data comparing overall SCI-Fayette illness rates with other SCIs, and it did not maintain health records of its staff.
Importantly, in my view, in a later fact-finding stage pertaining to appellees’ petition for sanctions, the Commonwealth Court determined DOC's initial "construction" of the request as pertaining to documents related to the investigation "alone does not evince bad faith." Uniontown Newspapers v. Pa. Dep't of Corr. , 185 A.3d 1161, 1171 (Pa. Cmwlth. 2018) ( Uniontown II ) (emphasis added). The court instead determined the problem was "that DOC did not give any specific, separate consideration to the [r]equest at all." Id. (emphasis in original). However, the record clearly shows, when OOR informed DOC that the non-criminal investigation exception did not apply, DOC searched its records and timely disclosed the documents described above. Indeed, the Commonwealth Court, despite determining there was no "separate consideration to the [r]equest at all," described DOC's request-responsive disclosure as consisting of "charts depicting the following: the number of patients with pulmonary conditions in all SCIs (from Chronic Care Clinic records); the number of inmates with cancer in all SCIs (2010-13); inmate cancer deaths by institution (2010-13); inmate cancer deaths at SCI-Fayette (2003-13); the number of inmates treated by Pharmacy Contractor for pulmonary ailments (2010-14); and the number of inmates treated by Pharmacy Contractor for gastrointestinal ailments (2010-14)." Id. at 1165. The court also noted that, when asked to verify the completeness of its disclosure, the DOC advised appellees additional review was necessary to "see if other records existed that were responsive[,]" id . at 1165, and thereafter disclosed memos and emails from physicians involved in the investigation, as well as "cancer patient tracking charts from the Oncology Database for DOC as of November 2014, and for SCI-Fayette as of January 2015." Id. at 1166.
In light of these circumstances, the single-judge Commonwealth Court's determination DOC acted in bad faith is incongruous. The original request was arguably ambiguous, as it sought documents regarding "illnesses contracted by inmates" generally, with a "particular[ ] interest[ ]" in "various types of cancer" and "respiratory ailments reported." And, not surprisingly, the court held DOC did not act in bad faith by presuming the request related to documents pertaining to the investigation. But, after DOC was informed the Section 708(b)(17) exception did not apply, and in the face of DOC's subsequent disclosure of the documents responsive to the request, the court nevertheless determined DOC acted in bad faith by giving the request no "separate" consideration. Uniontown II , 185 A.3d at 1171. The learned majority observes the court "by implication" faulted Mr. Filkosky "for his slavish reliance on the Health Care Bureau's conclusion that the only responsive records related to the ... [i]nvestigation." Majority Op. at 28, 243 A.3d 19. But from my perspective, after DOC was informed the non-criminal investigation exception did not apply, it did conduct a search, which resulted in its disclosure of numerous responsive documents.
Moreover, if there were other "responsive records" that fell outside the oblique initial request for "illnesses" generally, perhaps unrelated to the investigation, any responsive "search" for them would indeed be burdensome, as the request was so ill-defined that the DOC's Health Care Bureau and ORO would have little idea regarding what records precisely were being sought and would satisfy the request. Thus, it seems to me, when informed the non-criminal investigation exception was inapplicable, DOC disclosed the data pertaining to the imprecise request as fully as it reasonably could. There appears to be no dispute the documents disclosed at that time were responsive to the request, but it appears the court nevertheless determined there was bad faith in failing to disclose additional documents. Even beginning, as we must, from a presumption of transparency when resolving disputes regarding the disclosure of government records under the RTKL, see ACLU of Pa. v. Pa. State Police , ––– Pa. ––––, 232 A.3d 654, 656 (2020), I view the documents DOC disclosed as responsive enough to overcome a claim of bad faith, given the nature and timing of the request, and the salience of the documents actually produced.
I also note that before the OOR, DOC asserted it possessed records it deemed exempt based on the advice of counsel, who "[c]ritically," submitted a verification to the OOR, "without ever obtaining or reviewing the records." Majority Op. at 23, 243 A.3d 19, citing Uniontown II , 185 A.3d at 1173. On that basis, the Commonwealth Court concluded " ‘by contesting access during the appeal, without obtaining all records and assessing the records’ public nature, DOC acted in bad faith." Id. , quoting Uniontown II, 185 A.3d at 1173. I question whether a party's reliance on counsel's advice in an adversarial proceeding under the RTKL may be seen as acting in bad faith even under the RTKL's somewhat lenient bad faith standard designed to root out governmental lack of transparency.2 Given the indefinite nature of the request for documents, I respectfully disagree DOC's search was lacking in the detail necessary to show bad faith under the applicable standard.